J. G. CHITRA, J. ( 1 ) THE Ujjain Municipal Corporation (hereinafter referred to as corporation) is hereby assailing the correctness, propriety and legality of order of acquittal or respondent passed by Judicial Magistrate First Class Ujjain in criminal Case No. 335 of 1980 by which he acquitted the respondent of the charge under Section 7 (1) read with Section 16 (1) (a) (i) of prevention of Food Adulteration Act, 1954 (hereinafter referred to the Food Adulteration Act ). ( 2 ) ON 5-10-1979 p. m. the complainant Food Inspector Raghvirsingh Sisodiya took the sample of buffalo milk when the said milk was in a pot commonly known in this region as Kadai. The said milk was kept on a earth which was constantly heating it. After completing the formalities the sample was sent to public Analyst for analysis. The said milk was found to be adulterated. After the report of the Public Analyst was received the respondent was prosecuted for the offences mentioned above. ( 3 ) THE corporation examined R. S. Sisodyia, Food Inspector and Dr. B. R. Gupta public Analyst for substantiating the case. ( 4 ) AFTER appreciating the evidence on record the learned Magistrate held that the provisions of Rule 9-A of the rules made under the provision of Food Adulteration Act have not been complied with and that caused prejudice to the defence of the accused. In view of that the trial Court acquitted the accused who is respondent in the present matter and that order is the subject matter of challenge in the present case. ( 5 ) THE learned counsel for the corporation submitted that the learned trial Judge committed an error of law in acquitting the respondent by blaming the Food Inspector and Corporation for non-compliance of Rule 9-A of the rules framed under the provisions of the Act. He submitted that the provisions of said rule and Section 13 (2) of the Act are not mandatory. ( 6 ) LEARNED counsel for the accused/respondent argued that because of the non stirring of the milk by the Food Inspector. Shri S. S. Sisodiya prejudice has been caused to the respondent and there has been interference in the analysis done by Dr. Gupta in respect of the sample sent to him. He argued that there is non-compliance of S. 13 (2) Rule 9-A of the Rules. Shri S. S. Sisodiya prejudice has been caused to the respondent and there has been interference in the analysis done by Dr. Gupta in respect of the sample sent to him. He argued that there is non-compliance of S. 13 (2) Rule 9-A of the Rules. On this point learned counsel for respondent placed reliance on some judgments. ( 7 ) IN the matter of Nathu Singh v. State of MP (1983 FAJ 147) our High Court held that when there is no evidence that provisions contained in Section 13 (2) of the Act and Rule 9-A of the Rules had been complied with the conviction of the accused under Section 7 (1) of the Act and sentence awarded to him under Section 16 of the Act are bad in law. In this matter a single Bench of our High Court considered various judgments and thereafter concluded that non-compliance of provisions of Section 13 (2) and Rule 9-A caused serious prejudice to the accused and therefore, accused had to be acquitted. In that judgment the decisions of the Supreme Court in the matter of Collector of Monghyr v. Keshav Prasad ( AIR 1962 SC 1694 ) and in the matter of R. B. Sugar Co. v. Rampur Municipality ( AIR 1965 SC 895 ) were followed. In the matter of Collector of Monghyr v. Keshav PD. ( AIR 1962 SC 1694 ) the Supreme Court observed :-"the question whether any requirement is mandatory or directory has to be decided not merely on the basis of any specific provision which for instance, sets out the consequences of the omission to observe the requirement but on the purpose for which the requirement has been enacted particularly in the context of the provision of the Act and the general scheme thereof. It would inter alia depend on whether the requirement is insisted on as a protection for the safeguarding of the right of liberty of person or of property which the action might involve. The employment of the auxillary verb 'shall' is inconclusive and similarly the mere absence of the imperative is not conclusive either. " ( 8 ) IN the matter of R. B. Sugar Co. The employment of the auxillary verb 'shall' is inconclusive and similarly the mere absence of the imperative is not conclusive either. " ( 8 ) IN the matter of R. B. Sugar Co. v. Rampur Municipality ( AIR 1965 SC 895 ) (supra) the Supreme Court observed :-"the question whether a particular provision of a statute which on the face of it, appears mandatory in as much as it uses the word 'shall' or is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor. The purpose for which the provision has been made and its nature the intention of the legislature in making the provision the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory. " ( 9 ) RULE 13 (2) of the Food Adulteration Act provides that :-"on receipt of the report of the result of the analysis under Sub-Section (1) to the effect that the article of food is adulterated the Local (Health) Authority shall after institution of prosecution against the person from whom the sample of Articles of food was taken and the person if any whose name address and other particular have been disclosed under Section 14-A forward in such manner as may be prescribed a copy of that report of the result of the analysis to such person or persons as the case may be, informing much person that if it is so desired either or both of them say make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory. " ( 10 ) RULE 9-A of Prevention of Food Adulteration Rules provides. " ( 10 ) RULE 9-A of Prevention of Food Adulteration Rules provides. :-"the local (Health) Authority shall immediately after the institution of prosecution forward copy of the report of the result of analysis in Form III delivered to him under sub-rule (1) of rule 7 by registered post or by hand as may be appropriate, to the person from whom the sample of the article was taken by the Food inspector and simultaneously also to the person, if any, whose name, address and other particulars have been disclosed under Section 14-A of the Act : provided that where the sample conforms to the provision of the Act or the rules made thereunder, and no prosecution is intended under Sub-Section (2), or no action is intended under Sub-Sec. (2-E) of Section 13 of the Act the Local (Health) Authority shall intimate the result to the vendor from whom the sample has been taken and also to the person whose name, address and other particulars have been disclosed under Section 14-A of the Act within 10 days from the receipt of the report from the public Analyst. " ( 11 ) BY provision of Section 13 (2) of the Act a very important right has been given to the accused who is facing a trial for adulteration under the provisions of Food Adulteration Act. He can get the sample of the article of food analysed by the Central Food Laboratory by making an application to the court within 10 days from the date of receipt of the copy of the report. It is to be noted that word 'shall' has not been used in Section 13 (2) of Food Adulteration Act. However, it has been used in Rule 9-A. The provisions of Section 13 (2) and Rule 9-A will have to be read together. As it has been observed by Supreme Court in matter of Collector of Monghyr v. Keshav Prasad ( AIR 1962 SC 1694 ) (supra) it will have to be seen as to for what purpose these enactments of Section 13 (2) and Rule 9-A have been framed. The right to get the sample analysed from Central Food Laboratory is conclusive. Formerly, there was Rule 9 (j) and that has been replaced by Rule 9-A words used in Rule 9-A are "the Local (Health) Authority shall immediately after the institution of prosecution" have their own importance. The right to get the sample analysed from Central Food Laboratory is conclusive. Formerly, there was Rule 9 (j) and that has been replaced by Rule 9-A words used in Rule 9-A are "the Local (Health) Authority shall immediately after the institution of prosecution" have their own importance. In the present matter the said copy of the report of the public Analyst has been given to the respondent after 5 months. This cannot be by any stretch of imagination called compliance of the spirit which has been indicated by Section 13 (2) and Rule 9-A of the Act and Rules. The learned trial Magistrate has rightly held that non-compliance of provision of Section 13 (2) and Rule 9-A has frustrated the prosecution. I do not find any perversity or illegality in it, ( 12 ) IN the present matter the learned counsel for the respondent has urged that in view of the way in which the sample had been collected by the Food Inspector and sent to the office of the public Analyst the sample in question cannot be cal led to be representative sample. Though the trial Magistrate has not considered this aspect, it cannot be said that this point was not agitated before him because the Food Inspector has been cross-examined on this point. In his evidence the Food inspector has admitted that cream (malai) the fat was the upper side of the said vessel known as Kadai that milk was quite separated from it. When a sample taken from such a vessel from the milk which has been (in ?) such a condition, the said milk has to be stirred and has to be mixed in such a way which would make the said milk homogenous and the sample representative of entire milk which has been stored in the said vessel. It is a matter of experience that when the milk is heated the fit comes to the upper layer at the surface. In the present matter the evidence shows that it was at the upper portion of the said vessel quite separate from the milk. In that condition it was the duty of the Food Inspector to mix the said milk until it becomes homogenous and thereafter to take the sample which could be representative one. In the present matter the evidence shows that it was at the upper portion of the said vessel quite separate from the milk. In that condition it was the duty of the Food Inspector to mix the said milk until it becomes homogenous and thereafter to take the sample which could be representative one. In the present case it has not been done so and, therefore, there is bound to be deficiency of fact in it, when the trial Court does not apply its mind to a very important aspect of the case on which the witness has been cross-examined, the higher Court has to give proper attention to such aspect of the case. Therefore, I have no hesitation in coming to the conclusion that the sample which had been sent for analysis in the present case was not representative one and therefore, the prosecution could not have succeeded in proving the guilt of the accused. In the present matter the accused has, been acquitted by the trial Court and I do not find any reason to come to the conclusion that the said order of acquittal is in any way incorrect perverse or illegal. ( 13 ) IT is well settled that unless the High Court comes to the conclusion that the order of acquittal is perverse or illegal it would not disturb it. In the present case the prosecution has failed to prove the guilt of the accused and, therefore the trial Court has acquitted him. Thus, in view of the observation made above, I come to the conclusion that this appeal needs to be dismissed. ( 14 ) THE appeal is, therefore, dismissed. Appeal dismissed. .